April 4, 2011
Even after some political maneuvering passed the collective bargaining restriction bill on March 11, the fight isn’t over.
Because of a provision in the Wisconsin State Constitution, opponents of the bill have been able to challenge the legality of the law due to the fact that the stipulated procedure, the Open Meetings law, was not followed.
The constitutional provision in question, section 10 of article four, is itself quite simple.
It requires each house of the legislature to keep and publish a journal of its proceedings, and for the doors of each house to remain open to the public.
The provision alone is vague. Fortunately, there’s an entire subchapter within the Wisconsin Statutes that extensively elaborates on the requirements.
It is on these laws that suits were filed seeking to void the law.
On March 16, Ismael R. Ozanne, the District Attorney for Dane County, filed suit seeking to have the law either voided or enjoined from publication.
Ozanne’s grounds are that the Joint Committee of Conference which convened on March 9 (to strip the budget bill of all fiscal provisions) did not give adequate public notice on either the subject matter or advance notice requirements under Wisconsin law.
As a factual matter, Ozanne is correct in asserting that the Committee was not in compliance with the statutory requirements.
Specifically, while 24 hours advance notice is required, less than two hours advance notice was given; further, almost no information was given about the subject matter of the Committee, when law requires an advanced detailed disclosure.
What is not obvious, however, is whether the courts have the power to void a law on such a basis.
The trial court did not void the law, but rather issued an injunction preventing publication (and therefore the legal effect) of the bill until the state supreme court could hear an appeal on the matter.
Secretary of State Douglas LaFollette appealed the decision.
The appellate court kept the injunction in place, deciding that there was not sufficient case law on the issue to decisively rule on the matter.
In spite of two court rulings ordering to the contrary, the bill was published on March 25.
In response, on March 31, the trial court judge reinstated the injunction, and additionally declared the publication void and the law not in effect. The state suspended enforcement of the law the same day.
The case is obviously headed for the state supreme court.
The issues likely to be faced are nicely presented in the appellate court’s discussion on the issue vis-à-vis the state constitution.
The discussion focuses on whether judicial powers can void a legislative action taken in violation of the Open Meetings law. To the appellate court, the issue hinged on whether there’s a constitutional right implicated in the law.
Unfortunately, the appellate court did not resolve the issue. Rather, it safely retreated and left the question open for the Wisconsin Supreme Court to decide.
Should the supreme court void the law, it will bring Wisconsin back to square one, and the show will start from the beginning.